When Can You Refuse Consent to Search Your Car?

In Byrd v. United States, the US Supreme Court last week held that an unauthorized driver of a rental car has standing to refuse to consent to a search and to challenge the search in court.

Someone else rented the car and then allowed Byrd to drive it. When Byrd was stopped by the highway patrol, he refused consent to search the car, but they insisted, saying that he could not refuse because “he has no expectation of privacy.”

They searched the car anyway, finding 49 bricks of heroin and body armor hidden in the car’s trunk. The District Court and the Court of Appeals agreed that Byrd had no expectation of privacy and upheld the search and conviction, but the US Supreme Court disagreed, holding that:

A person who is in lawful possession of property has the right to refuse consent to search; but

The case should be remanded to determine whether there was probable cause for the search.

When Do You Have Standing to Refuse Consent?

The test for whether someone has “standing” to refuse consent to search is whether the person lawfully possesses and controls the property (in this case, a vehicle) – when a person has the right to “exclude others” from property, they also have the right to refuse to give police consent to search their property.

“One of the main rights attaching to property is the right to exclude others,” and, in the main, “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.

The requirement that the person be in lawful possession of the property excludes thieves, carjackers, or burglars from the definition – the sticking point in the Byrd case was whether Byrd was lawfully in possession of the car since he was not an authorized driver. As the Court notes, there is a very real difference between someone who is not authorized to drive by a rental car agreement and someone who stole a car.

Was There Probable Cause for the Search of Byrd’s Car?

I don’t think so.

According to the Court’s opinion, the officer was suspicious of Byrd because “he was driving with his hands at the “10 and 2” position on the steering wheel, sitting far back from the steering wheel, and driving a rental car.” The officer then followed Byrd and pulled him over for a traffic violation.

The officer said Byrd was “visibly nervous” when he approached the window and had a hard time getting his driver’s license out. After running a computer check, the officers discovered that Byrd had prior drug convictions and an outstanding warrant from New Jersey, but New Jersey said they would not extradite him.

Is any of this probable cause to search a car?

Driving with hands at the “10 and 2” position: This is exactly how the driver’s manual says you are supposed to drive. How could doing something exactly right be probable cause? Probable cause of what? Good driving?

Driving a rental car: is probable cause that you… rented a car? Although law enforcement trained in drug interdiction (and Fourth Amendment law) will often testify that rental car + travelling to or from a known drug hub + inconsistent statements from passenger and driver + following too closely are, taken together, indicators of drug trafficking, most of those “indicators” were not present in this case.

He was “visibly nervous:” Aren’t most people who are pulled over by police visibly nervous? I’ve been there…

Prior drug convictions: Are not evidence of current drug activity – police officers do not have the right to search and harass any person based on their past convictions.

Outstanding warrant from NJ: Is not evidence of any current crime. Because NJ noted that they would not extradite him, there was no basis for his arrest and no probable cause of any crime for which he could be taken into custody.

Prolonged Detention Without Reasonable Suspicion is a Fourth Amendment Violation

According to the officer, Byrd voluntarily admitted that he had a blunt in the car and offered to give it to them – that’sdefinitely probable cause.

But wait – he didn’t make that statement until he had been detained on the roadside for some time, long enough for the officers to run a computer check, determine that there were no outstanding warrants that they could arrest him for, interrogate him on the side of the road, and inform him that they were going to search whether he consented or not. Did they even write a ticket for the traffic violation that they claimed he committed after following him?

Police can detain you, if they suspect you committed a traffic violation, long enough to run a computer check and write a ticket. Any detention beyond that is a Fourth Amendment violation unless there is consent or a “reasonable, articulable suspicion” that there is other criminal activity.

In SC, even when you give consent, that consent is involuntary and invalid if it was obtained after detaining you for an unreasonable amount of time without further reasonable suspicion…

The information contained on this website and our blog is not, nor is it intended to be, legal advice. Your visit to this website does not create an attorney-client relationship with Charleston, SC criminal defense lawyer Grant B. Smaldone. You should consult a licensed attorney for advice regarding your individual situation.